2023 RLLR 10
Citation: 2023 RLLR 10
Tribunal: Refugee Protection Division
Date of Decision: January 27, 2023
Panel: K. Sharma
Counsel for the Claimant(s): Yelda Zohal Anwari
Country: Mexico
RPD Number: TC2-25976
Associated RPD Number(s): N/A
ATIP Number: A-2023-01721
ATIP Pages: N/A
REASONS FOR DECISION
INTRODUCTION
[1] These are the reasons for the decision in the claim for refugee protection made by XXXX XXXX XXXX (“the claimant”).
[2] The claimant alleges to be a citizen of Mexico and is claiming refugee protection pursuant to sections 96 and 97(1) of the Immigration and Refugee Protection Act (IRPA).[1]
[3] In rendering this decision, the panel has considered and applied Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression, and Sex Characteristics (SOGIESC Guidelines)[2] and in this regard it has carefully examined the claimant’s oral testimony in line with the factors to be considered when applying this Guideline.
ALLEGATIONS
[4] The facts and events alleged in support of the claim are set out in the claimant’s Basis of Claim (BOC)[3] forms. The claimant fears harm at the hand of the XXXX police and Cártel de Jalisco Nueva Generación (CJNG) due to his family’s past altercations with both the police and cartel.
[5] When the claimant’s family departed for Canada in 2019, he continued to live in Mexico with his grandparents. In XXXX 2021, the claimant received messages from a police officer, showing a video of the claimant walking home.
[6] The claimant alleges that he experiences mental health problems emanating from the abuse he experienced as a child, which he has not disclosed to his family. The claimant also identifies as a bisexual man, and he has also not disclosed his sexual orientation to his family.
PROCEDURAL MATTERS
[7] On December 13, 2022, the Refugee Protection Division (RPD) received letters from the claimant’s family members, in which they gave consent to the RPD to access materials of their refugee claim in support of the claimant’s claim. During the hearing, the panel instructed the claimant’s counsel to submit all documentation from the previous refuge claims of the claimant’s family members that the claimant wishes to use in support of his own claim. The claimant’s counsel stated that they understood. On January 16, 2023, the claimant’s counsel submitted their written submissions and post-hearing documents[4], which was entered into evidence.
DETERMINATION
[8] The panel finds that the claimant is a person in need of protection, pursuant to section 97(1)(b) of the IRPA, because he would be subjected personally to a risk to life or to a risk of cruel and unusual treatment or punishment, should he return to Mexico, on a balance of probabilities.
ANALYSIS
Identity
[9] The claimant’s personal identity and Mexican nationality were established based on a copy of his Mexican passport.[5] The panel is satisfied, based on a balance of probabilities, that the claimant has established his identity.
Nexus
[10] The panel finds that the claimant has established a nexus to a Convention ground, namely his membership in a particular social group as a bisexual man.
[11] In addition to this established nexus, the claimant alleges that he fears harm from the CJNG and the Mexican police, given his family’s previous altercation with the two groups. The panel finds therefore that the claimant was not targeted by the CNJG or the Mexican police by reason of the claimant’s gender, race, nationality, political opinion, religion, or membership in a particular social group. As such, the claimant’s allegations will also be assessed under subsection 97(1)(b) of the IRPA only.
[12] As the panel has made a positive determination on this claim given the 97(1) risk the claimant faces upon return to Mexico, the analysis surrounding the 97(1) risk will be the focus of this decision.
Credibility
[13] When a claimant swears that certain facts are true, this creates a presumption that they are true unless there is a valid reason to doubt their truthfulness.[6]
[14] The claimant testified candidly and spontaneously in a way that reflected the events reported in his BOC narrative and was responsive to all questions asked. There were no significant inconsistencies or omissions which caused the panel concern with regards to relating his experiences in being pursued by the agents of harm, and the panel considers that he provided a truthful and detailed recollection to the best of his abilities.
[15] The claimant testified about his family’s altercation with the police with sufficient detail, consistency, and spontaneity. The claimant testified that in XXXX 2017, the claimant’s brother, was involved in an altercation with the police, where he was beaten up outside their home and threatened with retaliation.
[16] In testimony, the claimant explained that the assault led his mother to make a formal complaint against the police officers with the Specialized Prosecutors Office as well as the Human Rights Commission. The claimant alleged that his mother began to receive threats asking her to withdraw the charges against the XXXX police or she and her family would be killed. The claimant stated that his brother was kidnapped by the CJNG in XXXX 2019, but the claimant admitted that he does not know the details of this ordeal as his brother does not talk about it.
[17] In addition, the panel finds the claimant’s testimony regarding his sexual orientation as a bisexual man to be credible and detailed. The claimant was asked at what point he realized his sexual orientation and was asked about his relationship with his former male partner in Mexico. He testified how he struggled to come to terms with his identity given the abuse he experienced as a child and the machoistic society he grew up in.
[18] The panel finds that the claimant did not exaggerate or tailor his evidence. The claimant was clear about what he experienced. For example, the claimant was restrained in his description of what he experienced, and the panel accepts that those were his experiences.
[19] The claimant also provided supporting documents[7] in support of their claim to corroborate the allegations of harm. This included the Basis of Claim forms completed by his family members, police reports filed by the claimant’s mother, and corresponding evidence of the case filed from the Specialized Prosecutor’s office.
[20] The panel have no reason to doubt the authenticity of these documents and the panel accepts that the claimant has corroborated these allegations outlines in his BOC narrative.
[21] However, the panel did have concerns about the claimant’s delay in leaving Mexico. The claimant testified that his two brothers, mother and stepfather, left Mexico for Canada in the year 2019. The claimant explained that he wanted to continue to live in Mexico with his grandfather and that his mother didn’t have enough money to take him along to Canada.
[22] The claimant further explained that he received WhatsApp messages and videos taken of the claimant walking officer in XXXX 2021. The claimant stated that these messages and videos were taken by a police office, who insinuated that they are watching the claimant. As such, the claimant decided to leave Mexico but his plans were further derailed by the COVID-19 pandemic, until he was able to leave Mexico in XXXX 2021. The panel finds this explanation to be reasonable and the panel does not draw a negative inference in this regard.
[23] Accordingly, the panel finds on a balance of probabilities that the claimant was a credible witness as to his experiences, and the panel is satisfied that he has credibly established his allegations with regards to the threats and harm they faced from the XXXX police and their ties with the CJNG.
State Protection
[24] While not raised as an issue, the panel has also considered whether state protection is available to the claimant and concluded that it is not. There is clear and convincing evidence before me that the state is unable or unwilling to protect the claimant. The panel finds that it would be objectively unreasonable for the claimant to seek further protection of the state in light of his particular circumstances.
[25] In the case at bar, the claimant’s mother filed police reports against the agents of harm, police officers affiliated the CJNG. The claimant alleges that their complaints to the police actually worsened their situation as the CJNG abducted the claimant’s brother in retaliation of the police reports filed and the commencement of the investigation.
[26] In terms of state protection, the local and state authorities in Mexico are generally unwilling and unable to protect victims of gang violence. According to item 7.22 of the National Documentation Package (NDP), ongoing corruption, weakness, and lack of confidence in Mexican law enforcement, particularly of local and state police forces, but also the Federal Police, have created a climate of impunity and increased criminal violence.[8] Despite the state’s attempts to eradicate drug trafficking and target top-level gang leaders, these strategies have simply resulted in shifting alliances and the emergence of new gangs. In addition, the documents evidence in the NDP states corruption and complicity with criminals are rampant.[9]
[27] The government’s Federal Statistics Agency estimated that 94 percent of crimes were unreported or not investigated. And there were reports of some government agents who are complicit with the international organized criminal gangs, and there were low prosecution and conviction rates for these abuses.[10]
[28] For these reasons, the panel finds that the claimant has rebutted the presumption of state protection.
Internal Flight Alternative (IFA)
[29] At the outset of the hearing, the panel proposed the IFA location of Mexico City and Puerto Vallarta.
[30] The panel finds that the claimant does not have a viable IFA. The panel has considered the totality of the evidence and find that there remains a personalized risk under section 97(1) of the IRPA for the claimant in IFA location.
[31] Item 1.2 in the NDP denotes that Mexico is a large country with a population of over 132 million people covering an area of over 1.9 million sq. km. The law provides for freedom of movement and the right to travel within Mexico.[11] In determining whether the CJNG has both the “means and motivation” to locate the claimant in the IFA locations, the panel has considered the size of the cartels, their areas of operation, and their levels of interest in the claimant.
[32] The Mexican government designated the CJNG as one of the most dangerous in the country and one with a national reach. CJNG is known to have a presence in at least 27 out of 32 Mexican states. Its rapid expansion throughout Mexico and into the United States has led to a surge in violence and use of heavy weaponry including armoured vehicles and rocket-propelled grenade launchers.[12]
[33] According to NPD item 7.8 and item 3.5, a powerful cartel could use several tactics to locate a person of interest, such as having access to national databases through corrupt government officials. The NDP Item 7.15 describes the strategic alliances that the cartels have forged with each other to extend their reach beyond their areas of operation. Considering the profile of the CJNG being the most influential cartel in Mexico at the moment, the panel finds that, on a balance of probabilities, that the CJNG has the means to locate the claimant if properly motivated.
[34] On the issue of the motivation, according to NDP items 7.8 and 7.15, a personal vendetta to the ones that refuse to collaborate with the cartels could motivate a gang to track someone, even outside their area of operation. Considering previously cited sources, in the circumstances, the panel finds that, on the balance of probabilities, the agents of harm may be motivated to locate and harm the claimant due to the matter of personal revenge. In the particular circumstances of the claimant, his family members have personally angered police officers alleged ties to the CJNG due to the police reports filed against the police officers who physically assaulted the claimant’s brother. According to the claimant’s allegations, which the panel has found credible, the police officers and the CJNG to continue threatening and harassing the claimant and his family members.
[35] The panel has also considered the level of interest of the agents of harm in the claimant in determining whether, on a balance of probabilities, a section 97(1)(b) risk exists for them in the IFA locations proposed.
[36] Country condition evidence suggests that the CJNG has the ability to operate nationally, even where they do not ordinarily control the territory, but that such efforts would be reserved for more high-profile targets, given the level of resource expenditure required. This is especially the case in cities such as the proposed IFA locations where the CJNG is not known to have a significant presence.
[37] However, considering the above, on a balance of probabilities, the panel finds it credibly established that the agents of harm, which in this claim are police officers and their ties to the CJNG, have the means and motivation to seek out the claimant on a national level, and it is very likely they would make significant efforts to seek them out beyond the local area where they originally came to their attention.
[38] Having considered all of the testimony and evidence, the panel finds that the first prong of the IFA test has failed and that there is no viable IFA for the claimant. Therefore, the panel finds on a balance of probabilities that the claimant would face a personal risk to life or a risk of cruel and unusual treatment or punishment, in the IFA locations.
CONCLUSION
[39] In conclusion, based on the totality of the evidence, the panel finds that on a balance of probabilities that the claimant would face a personalized risk to their life or of cruel and unusual treatment or punishment throughout Mexico. The claim is therefore accepted.
(signed) K. Sharma
January 27, 2023
[1] The Immigration and Refugee Protection Act, S.C. 2001, c.27, as amended, sections 96 and 97(1).
[2] Guideline 9: Proceedings Before the IRB Involving Sexual Orientation, Gender Identity and Expression, and Sex Characteristics, Guidelines issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act
[3] Exhibit 2
[4] Exhibit 8
[5] Exhibit 1
[6] Maldonado v. Canada (M.E.I.), [1980] 2 F.C. 302 (C.A.); 31 N.R. 34 (F.C.A.).
[7] Exhibits 5 and 8
[8] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, tab 7.22
[9] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, tabs 2.3 and 2.4
[10] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, tab 2.1
[11] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, tab 1.2
[12] Exhibit 3, National Documentation Package, Mexico, 29 September 2022, tab 7.2